Investigating three people it suspected of conspiring to destroy government property and bombing a Central Intelligence Agency office, officials used electronic surveillance to record suspects' conversations. The wiretapping was conducted without a search warrant.

The Court held government officials were obligated to obtain a warrant before beginning electronic surveillance even if domestic security issues were involved. The "inherent vagueness of the domestic security concept" and the potential for abusing it to quell political dissent made the Fourth Amendment protections especially important when the government engaged in spying on its own citizens.

Mr. Chief Justice Burger: We’ll hear arguments next in Number 70-153, United States against the District Court and others.

Mr. Mardian, you may proceed.

Argument of Mardian

Mr. Mardian: Mr. Chief Justice and may it please the Court.

This case arises from a criminal proceeding which is now pending in the District Court for the Eastern District of Michigan, in which the three defendants were charge with a conspiracy to destroy Government property.

One of the defendants, the defendant Plamondon was also charged the substant violation of destroying Government property.

The indictments in this case resulted from the dynamite bombing of the Offices of the Central Intelligence Agency Building in Ann Arbor, Michigan.

During the course of the pretrial proceedings, motion was made for discovery of information relating to electronic surveillance that might be in possession of the Government.

In response to this motion, the Government served upon the movements an affidavit of the Attorney General of United States, in which he acknowledged that one to the defendants, the defendant Plamondon, had been overheard in the course of a surveillance authorized by him in which he deemed necessary in the interest of the National Security United States.

The affidavits stated that the disclosure of this information would be prejudicial to the interest of United States.

In addition to serving the affidavit on the movements and filing it with the Court, the Government also submitted to the Court for its in camera inspection, the logs of the over hearings requested by the defendants, included in that in that in camera submission, the Government also offered the of -- the proof of the authorization to the Attorney General of United States for the surveillance and question conducted prior to the time of the bombing.

The in camera exhibit will show, which is now before this Court, that it contains a memorandum from the Director of the FBI to the Attorney General, in which he sets forth all of the electric -- electronic surveillances operated by the Government at that time, approved by the Attorney General or by the former Attorney General.

Prior to submission however, the Government excised the names of the organizations and individuals which were the subject of surveillance with the exception of the organization which this -- which was the subject of surveillance in this case.

That in camera submission will also show, a characterization in the form of the memorandum from the Director of the FBI to the Attorney General, the organization in question, its leadership and its illegal aims and information relating to the fact that the organization was engaged in activities of a type which would ultimately lead to the destruction for the United States Government before some violence.

This in camera submission would also show that the authorization of the Attorney General was for a limited period only.

It described the premises where the installation surveillance was involved and indicated that the surveillance was subject to periodic review.

Based upon this in camera submission, the United States urged that the surveillance and question was lawful.

Justice Potter Stewart: Periodic review by whom, the Attorney General or the Director of the FBI?

Mr. Mardian: Pardon me, sir, I didn’t --

Justice Potter Stewart: You said it was subject to periodic review and by whom?

Mr. Mardian: By the Attorney General of the United States.

Justice Potter Stewart: By the Attorney General.

Mr. Mardian: Yes, sir.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Now is this surveillance, this pattern of surveillance traceable back to the directive which President Roosevelt gave to Attorney General Jackson in this area?

Rebuttal of Mardian

Mr. Mardian: Yes, Mr. Chief Justice.

The Government urged that this was a lawful surveillance exercised under the jurisdiction of the President United States and --

Justice Thurgood Marshall: Is that memorandum in the record?

Mr. Mardian: Yes, Your Honor.

Justice Thurgood Marshall: Of President Roosevelt?

Mr. Mardian: Yes, Your Honor.

Justice Thurgood Marshall: Are the other memorandum in there since then?

Mr. Mardian: Yes, Your Honor.

Justice Thurgood Marshall: That’s all here?

Mr. Mardian: Yes, Your Honor.

The Government’s position based upon this in camera submission and the affidavit of the Attorney General was at the surveillance.

It was a lawful as reasonable exercise of the presidential powers in the area of national security.

The District Court after reviewing the in camera submission and I should point out in this regard, that the in camera submission was not intended as a justification for the authorization but simply of proof of the fact that the authorization had been granted by the Attorney General of the United States over his own signature.

The respondent court, Judge Keith, held based upon the affidavit and the in camera submission that the overhearing should be disclosed to the defendants as a plaintiff to an evidentiary hearing to determine whether or not the information contained on the logs contributed in any ways to the prosecution of the defendant Plamondon.

It took -- made this holding on the basis that the President of United States was without authority to authorize a surveillance absent -- the judicial in a position of a warrant by sitting a federal judge.

The United States immediately petitioned for a writ of mandamus to the Sixth Circuit Court of Appeals and the Sixth Circuit unanimously held that mandamus was an appropriate remedy but by a divided Court concurred in the judgment of the District Court on the basis, in the words of Justice Edwards, that there was not one phrase or word in the Constitution in the United States, in the statutory law of United States or the case law of the United States that exempted the President of United States from the provisions of the Fourth Amendment.

We do not contend here, Your Honors that the President of the United States either individually or acting through the Attorney General is exempt from the provisions of the Fourth Amendment or is above the provisions of the Constitution.

We do suggest that this case puts into issue an intelligence function and procedure which has been sanctioned by six successive Presidents acting through 12 successive Attorneys General.

And while the Constitutional issue is grave and the stakes as far as the Government are concerned is high, the issue before the Court can be easily framed.

Stated negatively, the question is not whether electronic surveillance is a permissible governmental tool.

More narrowly claimed, the question is whether in a limited area of counterintelligence activities, the President of the United States may authorize electronic surveillance in the absence of a warrant by a member of the judiciary of this nation.

In order to understand the case and to properly resolve it, I think we must first understand the factual setting as distinguished from the other cases that have been before this Court.

This is not a case such as the Katz case or the Black case or O’Brian or Alderman, where electronic surveillance was authorized for the purpose of obtaining prosecutive evidence in a criminal proceeding.

Nor is it a case as in those cases where the defendant was the target of the electronic surveillance which was authorized.

We have here as we had in the Clay case, a situation where one of the defendants unfortuitously or fortuitously depending upon the outcome of this case happen to dial a number which was the subject of a surveillance authorized by the President of the United States acting through the Attorney General.

The Government contends contrary to the distinction made by the lower court, that the President of the United States is imbued with two powers in order to carry out two responsibilities.

Both lower courts distinguished the Clay case on the grounds that the power exercised in that case was an aid of the powers of the President in the area of Foreign Affairs related that power to defending the interest of the United States against the acts of hostile foreign powers.

United States urges that they -- these two powers are separate and distinct.

The one power or the power of the President in the area of Foreign Affairs is granted upon the fact that the President is the exclusive national organ of the United States in the area of Foreign Affairs.

The other power is granted upon the responsibility and obligation of the President to protect the security of the United States against its enemies whether foreign or domestic.

Because counterintelligence activities often involved both powers, there’s some confusion has come to exist.

In counterintelligence activities involved in the area of Foreign Affairs.

The purpose is to -- purpose of the surveillance is to permit the President of United States to obtain the ongoing intelligence information which is necessary to him to compete on at least an equal footing with the information obtained by foreign powers with whom he has to deal.

In the area of National Security however, the intelligence that is sought is for an entirely different purpose and the power and responsibility are grounded upon the President’s function in protecting the National Security against the enemies of the United States whether foreign or domestic.

Out of this confusion in dichotomy, the cases have discussed both powers as if they were one, and I think these case points up most eloquently the confusion which has existed between foreign and domestic intelligence.

The Government contends that as a legal and as a practical matter you cannot distinguish between foreign and domestic intelligence unless you use the situs of the installation as a basis for making a distinction.

Both lower courts however were not confused with this problem.

They did not reach it.

The respondent court grounded its decision on the basis that the intelligence function exercised here was for the purpose of surveiling a domestic organization and failed to distinguish the difference between surveiling for the purpose of obtaining intelligence information as distinguished from the nature of the organization from which the intelligence was sought.

We suggest also that the constitutional authority of the President is not found in any one provision or any one Article but may be gleaned from the Constitution as a whole and I speak now only for the Constitutional authority of the President in the area of National Security Affairs.

Justice Potter Stewart: Does the Congress of the United States has a great deal of constitutional authority in the area of internal security and domestic affairs.

I suppose if your argument is correct that Congress could delegate an agent of the Congress to do this investigative surveillance, could it not?

Mr. Mardian: The Congress has undoubted authority in the area of national security, I think you, as pointed out in the amicus brief filed by the National Lawyers Guild and the Black Panther Party in Article 1 Section 15.

The Constitution provides the States that the Congress shall provide for the calling of the Militia of the United States in the event of insurrection.

The amicus brief asserts that because of this provision, the Congress of the United States as distinguished from the President is -- has fair amount authority in the area of the internal affairs of the country.

I would point out in that regard that the Second Congress confederates of the provision of Article 1 Section 15, did provide for the calling of the militia and repose that responsibility in the President of the United States, post statutes enacted it the Second Congress now subsist in 10 U.S.C. 1031 and 1032.

Justice Potter Stewart: Well, my question is, was direct to this, is it your contention that only the President has this power through the appropriate cabinet officer or would the Congress not also have at least equivalent power in this area, if you’re right?

Mr. Mardian: I would agree, Your Honor.

In fact I think in this area as the Court -- this Court pointed out in Colonnade Catering, the Congress the United States has broad powers.

Justice Potter Stewart: And broad investigative powers that’s been held many times?

Mr. Mardian: Yes, in fashioning a rule of reasonableness under the Fourth Amendment.

Justice Potter Stewart: And I mean, I’m not -- I mean that if you’re right that the executive, the Chief Executive can do this through his designated agent cabinet officer, why couldn’t Congress equally do this investigating surveillance throughout the country through its designated agent?

Mr. Mardian: I think this type of activity Your Honor is peculiarly within the executive function.

I would like --

Justice Potter Stewart: Under the Constitution, you think it's entrusted exclusively to the President?

Mr. Mardian: I would not wish to state at this argument, Your Honor.

That it is within the exclusive province of the President of United States but only that this type of activity is peculiarly within the executive function which I would hope to show.

Unknown Speaker: Well, isn’t the constitution expressly reposes the executive function of the President and Congress passes laws and the President executes them?

Mr. Mardian: Yes, Your Honor.

Unknown Speaker: But wouldn’t you -- I take it that you would as Mr. Justice Stewart suggested Congress does have authority in this area and I take it from your answer that Congress could forbid the President from doing what you suggest he has the power to do in this case?

Mr. Mardian: That issue is not before this Court and --

Unknown Speaker: My next question will suggest that it did?

Would you say though that Congress could forbid the President?

Mr. Mardian: I think under the rule announced by this Court in Colonnade Catering that within certain limits, the Congress could severely restrict the power of the President in this area.

Unknown Speaker: Let’s assume Congress says then that the Attorney General or the President may authorize the Attorney General on specific situations as to carry out electronic surveillance if the Attorney General certifies that there is a clear and present danger to the security of the United States.

Mr. Mardian: I think that Congress has already provided the -- that in the --

Unknown Speaker: Well, would you say Congress would have the power to limit surveillances to situations where those conditions where satisfied?

Mr. Mardian: Yes, I would concur on that, Your Honor.

Unknown Speaker: Well, do you think this affidavit squares with this Safe Streets Act?

Mr. Mardian: As I try to suggest the affidavit, it was never intended as the basis for justifying the surveillance in question.

The affidavit --

Unknown Speaker: Why was it ever filed in the Court?

Mr. Mardian: The affidavit was filed with the movements.

The justification and again I suggest it -- is only a partial justification as contained in the in camera exhibit which was submitted to Judge Keith.

I think where the Attorney General to set forth any -- everything that --

Unknown Speaker: Well, I put it to you this way, do you think the affidavit satisfied alone -- standing alone satisfies the Safe Streets Act?

Mr. Mardian: No, sir.

And we do not rely upon the affidavit itself with the in camera exhibit.

I think the in camera will show in the characterization of the organization involved which was submitted to the Attorney General at the time the Director of the FBI sought authority from him to engage in the surveillance that the organization involved was in -- then engaged -- enacts activities which they hope would ultimately result in the destruction of our form of Government by means of illegal force.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: We’ll resume at that point after lunch, Mr. Mardian.

Rebuttal of Mardian

Mr. Mardian: Yes sir.[Lunch Recess]

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: You may proceed Mr. Mardian.

Rebuttal of Mardian

Mr. Mardian: Mr. Chief Justice and may it please the Court.

At the noon recess, I prepared to continue my response to Mr. Justice White and I would like to finish the answer to my question if I may and with respect to the in camera submission, Your Honor.

The in camera submission to the court was intended for the purpose of satisfying the court as to the authorization of the Attorney General of United States in the finding of the Attorney General.

I would like to point out in this regard --

Unknown Speaker: Which finding?

That’s in the -- that is contained in the in camera documents or in the(Voice Overlap)?

Mr. Mardian: Yes, that the in camera document which the Attorney General signed which contained the authorization from the surveillance in question.

I should like to point out that the --

Unknown Speaker: But that -- I take it that you would say that that authorization would contain something of substantive differences in this affidavit filed to the Court.

Mr. Mardian: Yes.

In the procedures then followed which if you recall this case arose out of a bombing that occurred in September 1968 and the indictment return in 1969.

Unknown Speaker: Well, I will put it this way, if all the in camera document contain with was this affidavit contain and the document(Inaudible)?

Mr. Mardian: I would concur in that, Your Honor.

I think you will find that the authorization which requested contained that information and was approved and signed by the Attorney General of United States.

Unknown Speaker: Well, it may -- maybe it contains information but does it contain a certification of the Attorney General that the standards set down by the Safe Streets Act that are complied with?

Mr. Mardian: I think that is satisfied by the signature of the Attorney General approving the authorization based upon the evidence which is contained in the request of authorization.

Unknown Speaker: He didn’t -- he doesn’t -- it doesn’t express his conclusion in so many words that this represents a clear and present danger to the United States?

Mr. Mardian: The requested authorization states that it’s requested because it does pose a clear and present danger to destruction existence of Government and the Attorney General approved that statement.

Procedures now in existence are different and would contain an expressed finding to that effect directed to the Director of the FBI.

I would like to point out --

Justice Thurgood Marshall: Does it give any basis for it?

Mr. Mardian: Yes, sir.

Justice Thurgood Marshall: It gives the detailed basis for why it is?

Mr. Mardian: No, I would say that it would be conclusionary, Your Honor more than setting forth each specific fact.

We keep in mind the decision-making process in this area is based upon the entire spectrum of intelligence information available to the Attorney General and not only the information supplied in by the Director of the FBI.

Justice Thurgood Marshall: Well, is that subject to any review by anybody?

Mr. Mardian: Limited judicial review I would say, Your Honor.

Justice Thurgood Marshall: Or how limited?

Mr. Mardian: In this area, I think the review should -- is limited to a determination of whether or not there was a gross abuse of discretion by the Attorney General acting for the President and making the authorization.

Justice Thurgood Marshall: Well, what could you find as a basis for determining that without the facts of some kind?

Mr. Mardian: Well --

Justice Thurgood Marshall: Well, what do you need other than conclusions?

Mr. Mardian: I would say, Your Honor that this goes right to the heart of a matter.

In this area, certain of the information which is available, all of the information which is available to the Attorney General of United States and through him to the President is not available to each investigative agency of government.

There is an entire spec --

Justice Thurgood Marshall: Is it available to the Courts?

Mr. Mardian: All of that information is not made available to the Courts.

Justice Thurgood Marshall: So then how does the Court determine the constitutional rights of the persons who claim that right not to be surveyed?

Mr. Mardian: We suggest that in the limited area of counterintelligence activities of Government as distinguished from the situation where a warrant is sought for prosecutive purposes.

That the executive function in this area is somewhat limited and that where the President of United States acting through the Attorney General or the Attorney General himself or one of his subordinates to lay before a sitting Federal Judge of the entire spectrum of information consisting of teletypes, letterhead memorandum and all of the information that comes from not only the FBI but from other agencies such as the Central Intelligence Agency, the National Security Agency, the Alcohol-Tobacco and Firearms Division of the Department of Treasury, and other investigative agencies of the Government.

All of these are reposed, all this information is reposed and files in the Attorney General of United States before he makes the authorization or grants the authorization requested, and I would point --

Justice Thurgood Marshall: Would that not be shared with the Federal Judge in camera?

Mr. Mardian: I think as we attempt to show in our brief the function of the courts --

Justice Thurgood Marshall: Well, let me ask you this, doesn’t the Federal Judge take the same oath the Attorney General take?

Mr. Mardian: Yes, sir.

The function of the Federal Judge in criminal cases is twofold.

One, the judge must determine the need for the evidence sought.

He then must make a determination as to whether or not there is probable cause to believe that a crime has been committed or is about to be committed before he authorizes the warrant.

Now, the first of this decisions is to whether the information is needed such as in the area of National Security, counterintelligence information, if you please.

It is the Government’s position that the magistrate, the sitting Federal Judge is not in a position to determine whether or not the information is needed much less appreciate in many cases the importance of the information sought unless that is to be exposed to that judge along with any one of over 600 Federal sitting judges, all of the information available to the executive in the area of National Security.

In this connection, Justice -- rather Professor Telford Taylor addressed himself to the problem in connection not with National Security Intelligence, counterintelligence if you please, but with respect to the authority of the judge and the ability of the judge to issue a warrant in an ordinary criminal case.

And if I may, I’d like to quote from Professor Telford Taylor and not that I ascribe him with his views with respect to warrants issued in criminal cases but he says, “What proper business is it of a judge and what experience of facilities does he have that will enable him to decide whether or not surveillance of a particular type is warranted in a particular case.”

He is pointing out I think the same thing that was pointed out in the report of the Committee of Privy Councilors when they addressed themselves to this question in England.

The question there was, whether or not the par at issue warrants for electronics surveillance should remain in the Secretary of State or should be reposed in the Federal Judiciary?

Justice Thurgood Marshall: But of course the Privy Council isn’t bound by the Fourth Amendment?

Mr. Mardian: No, but I think the Privy Council report is acutely aware of the right of privacy as it exist in England as much as it exist in the United States and it addresses itself to the question of whether or not the granting of this authority counterintelligence cases is in the best interest of the right of privacy of the individual and it concludes that it is not.

It concludes in its report, there will be a weakening of the process.

That there will be a diffusion of authority to anyone of the Federal Judiciary or the Judges in England rather than reposing that responsibility in one man and one man alone and we would suggest that the interest of privacy of the American citizen is better protected in limiting this authority in the area of electronic surveillance and counterintelligence cases to one man.

The Attorney General acting for the President of the United States rather to proliferate it amongst all of the Federal sitting Judges in United States and we say that not in connection with those cases where the judicial process is one of the determining probable cause.

But only in those cases and in the limited area of counterintelligence where the decision-making process requires a judgment as to the need for the intelligence information sought and we would suggests in this regard also that information obtained by the Government for counterintelligence purposes in this area is not used for prosecutive purposes and is not sought for prosecutive purposes.

Justice Thurgood Marshall: (Inaudible) here is the petitioners, I mean, the respondents rather the people that were before the Court and the respondent court take position that it was.

And they want to find out whether it was?

Am I right?

Mr. Mardian: I believe that is there contention but I think that in camera exhibit will show beyond question.

That the authorization in the case was totally unrelated in the information obtained was totally unrelated to the crime for which this defendants where indicted.

Justice Thurgood Marshall: Cause it showed that it wasn’t use?

Mr. Mardian: Yes, sir.

I think in camera examination will disclose as the Fifth Circuit found in the Clay case that the information and detained in the logs could not in any ways of a --

Mr. Mardian: The burden of the Court however in both cases is the same.

We do not have as we had in Alderman as was described by counsel in that case, case loads of electronically monitored conversations which would require -- which the Court would have to examine in juxtaposition to the skeletal averments of a criminal indictment.

We have as the counsel in the Alderman case suggested not even sheaves of papers, something less than sheaves of paper.

Not unlike Jenks Act materials, not unlike Grand Jury minutes which this Court as could the Circuit Court and the District Court have examined to determine that the overhearings were totally unrelated to the crime for which these people where indicted and I think that beyond question in camera exhibit will show that the purpose of the surveillance was for the sole and limited purpose of obtaining counterintelligence information as distinguished from prosecuted evidence in a criminal case.

Unknown Speaker: This arguments -- do you make and even on the assumption that the surveillance was illegal?

Mr. Mardian: I think it would apply equally.

Yes, sir Mr. Justice.

Unknown Speaker: Even if the surveillance were deemed to be an illegal one by this Court that it nevertheless didn’t taint these proceedings.

Mr. Mardian: I think in the –-

Unknown Speaker: And that -- and you say the taint should be considered in camera rather than a --?

Mr. Mardian: I think that in the setting of this case the burden would be no greater than the burden of the Court, the Fifth Circuit in the Clay case.

Unknown Speaker: And that position, you don’t think is that the law of states that seems inconsistent with Alderman?

Mr. Mardian: I don’t see it as inconsistent with Alderman.

I think the facts in the Alderman Case were far different from the facts of this case.

In the Alderman case, as counsel pointed out, the surveillance was authorized for the purpose of obtaining prosecuted evidence to be used in the criminal case and it was directed against the defendant.

And as in that case, I would assume, I didn’t look at the record that there were literally box loads of electrically monitored telephone conversations.

In this case, we have a situation as in Clay where as I have said, the defendant unfortuitously or fortuitously depending on the outcome of this case happened to call the wrong number.

And I think the in camera examination would disclosed that fact.

Unknown Speaker: I take it from your brief you also argued that nothing in the Safe Streets Act precludes this kind of an argument?

Mr. Mardian: I would -- I hope to get to that and I would concur that it doesn’t.

I would like if I made a turn briefly to answer the assertion of lack of constitutional authority and I think in this regard we must recognized the constitution authority of the President must be gleamed for a reading of the entire Constitution itself.

And I should like if I may to address myself very briefly to the provisions of the Constitution which the Government deems applicable to this case.

Unknown Speaker: Before you -- let me ask you, do you rely on the Safe Streets Act at all as an authorization?

Mr. Mardian: Yes, sir.

Yes, Your Honor.

Unknown Speaker: And so that even if the President's absence of authorization by the Congress didn’t have independent constitutional authority to do this.

Your argument is the Safe Streets Act authorizes him to do so and the Constitution would permit the Congress to authorize them to do so?

Mr. Mardian: In the setting of this case I would rather argue, Mr. Justice, that we read the Constitution along with the statutory provision and that in itself would be sufficient for the presidential authority in this area.

I think absent -- the Constitutional Enabling Act or the Congressional Enabling Act that we would have a more difficult case but I think in that case as I hope to show the President would have to the constitutional authority in this limited area to engage in electronic surveillance for counterintelligence purposes.

I would like to point first the preamble of the constitution which sets forth the purpose of this republic.

One of the primary stated purposes in the preamble is to ensure to domestic tranquility.

The insurance of domestic tranquility we would submit involves an executive function as well as a legislative and a judicial function.

Article 2, Section 2, provides and that reposes the executive function of the United States in the President of the United States.

And Article 2 also requires that the President take an oath that he will do to the best of his ability preserve, protect, and defend the Constitution of the United States and I submit in this regard that the protection of the Constitution or the oath to protect the Constitution is not an oath merely to protect the document itself, but to protect the principles of under which the Constitution was adopted and the rights guaranteed by that Constitution.

Unknown Speaker: Do you think that argument helps you in this case?

Mr. Mardian: Yes, sir.

I think I would hope to show that it does.

In Article 2, Section 2 the Framers of the Constitution designated the President of the United States as Commander in Chief of the Army, of the Navy, and of the Militia of the several States when called into active service by him.

In Article 2, Section 3, enjoins the President to take care that the Laws of this Nation are faithfully executed.

Each of this we submit is an executive function.

This Court in entering Nagel and passing upon Article 2, Section 3 such stated and I would like to quote from that, “The President’s duty to take care that the Laws be faithfully executed extends not merely to the enforcement of specific Acts of Congress but to the enforcement of the rights, duties, and obligations growing out of the Constitution itself are international relations and all other protection implied by the nature of our Government under the Constitution.”

Article 4, Section 4 which is often times overlooked carries out the promise of the preamble of the constitution.

That Article provides that the United States shall guarantee to every State of the United States a Republican Form of Government and shall protect each of them against invasion and on application of the legislature or the executive when the legislature is not in session against domestic violence.

Now, I have previously alluded to Article 1, Section 8 of the Constitution which provides that Congress shall provide for the calling forth of the militia to execute the Laws of the Nation, to suppress insurrection and repel invasion.

Now as one of the briefs pointed out, this power is in Congress but Congress has exercised that power.

It exercised it in 1792 in the Second Congress.

It provided in what is now 10 U.S.C. 331, that the President could call the Militia of the several States in the Federal Service and authorizes him to use such force as he deems necessary.

And I -- this is a quote from the provision of the act, “As he considers necessary to suppress insurrection.”

This is an executive function reposed in the President of the United States.

332 provides that whenever the President considers unlawful obstructions, combinations or assemblages or rebellion against the authority of the United States, make it impracticable to enforce the Laws of the United States and in any State or Territory by the ordinary course of judicial proceedings, he may call into the service of the militia of any State and use such of the Armed Forces as he considers necessary to enforce those laws or to suppress rebellion.

Section 333 of 10 U.S.C. provides the President use the militia or the Armed Forces for both or any other means and “shall take such measures as he considers necessary to suppress in a state, domestic violence, unlawful combination or conspiracy that seriously interferes to the execution of Laws in the United States.”

We would submit in this regard that Article 4, Section 4 of the Constitution makes no distinction with respect to presidential powers as they pertain to invasion or domestic violence.

Now, we turn to the Omnibus Crime Control and Safe Streets Act of 1968.

In that Act, in Subsection 3 of 2511 there is this language, nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overflow by force or other unlawful means or against any other clear and present danger to the structure or existence of Government.

If there be any doubt as to what any other means as the phrase is used in that statutory provision, it is dispel by the next following sentence.

The contents of any wire or oral communication intercepted by the authority of the President in the exercise of a foregoing powers may be received in evidence in any trial or hearing or other proceeding only where such interception was reasonable and shall not be otherwise used or disclosed except as is necessary to implement that power.

We suggest, Your Honors, that in the exercise of this function by the President of the United States there is of course a discretion vested and whenever the discretion is vested there is of course the chance that the discretion will be abused.

But this is the very essence of our Government and I would suggest to the Court that at the time of our Continental Congress, at the time of the Constitutional Convention, at the time this very Constitution was enacted.

There was serious question as to whether or not this Court had the power of judicial review.

It was asserted at that time when this Court consisted of five members that a majority of that Court could, if it had the power of judicial review, substitute its judgment, for the judgment of both Houses of Congress and the people of the United States that elected him.

Justice Marshall answered the question but I think Alexander Hamilton answered it even more eloquently in the Federalist Paper Number 80 in which he said, “To argue that the members of the Court could substitute there judgment for the will of the people would argue that there ought to be no Court.”

Justice Thurgood Marshall: Another Justice by the name of Marshall solely took care of all that, didn’t he?

Chief Justice Marshall?

Mr. Mardian: Chief Justice Marshall, I believe answered the question in the same way.

If we look to the Constitution of the United States, I doubt if we can find one phrase or one word which reposes in the Court the power of judicial review.

But Justice Marshall found that it was inherit in the Constitution itself that this --

Justice Thurgood Marshall: You keep talking -- the Fourth Amendment?

Are you going to get to it?

Mr. Mardian: Sorry.

Justice Thurgood Marshall: The Fourth Amendment?

Mr. Mardian: We suggest in this regard that, we are not asking for an exemption of the Fourth Amendment.

We do not suggest the President is above the Fourth Amendment.

We simply suggest that in the area in which he has limited but the exclusive authority to the President of the United States may authorize electronic surveillance and in those cases it is reasonable.

I would suggest in this regard that the Fourth Amendment does not prohibit all searches and seizures.

But only those which are deemed --

Justice Thurgood Marshall: Is it possible under your theory that the President could make unreasonable intrusion into the private life of citizen of this country?

Mr. Mardian: I think that the abuse of discretion to which you will elude is possible not only in the executive function but in the judicial as well as the legislative.

Justice Thurgood Marshall: I'm not talking about the judicial point.

I'm talking about the executive.

Mr. Mardian: I think that –-

Justice Thurgood Marshall: And I understand your position that if the President decides as necessary to bug John Doe’s phone, that’s it.

There is nothing under the sun John Jones can do that.

Mr. Mardian: Within the limited procedures, prescribed by the statute under which he acts.

Now, if he chooses to violate that statute, he might well choose to violate his oath.

This is an attribute of our Government which exists and has always existed.

But I would also suggest in this regard that this is not an unbridled discretion.

We are here before this Court for the Court to examine whether or not in this case there was an unbridled discretion or an abused of that discretion.

If I may, Your Honor, I would like to reserve what time I have left for rebuttal.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Very well, Mr. Mardian.

Rebuttal of Mardian

Mr. Mardian: Thank you.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Mr. Gossett.

Argument of William T. Gossett

Mr. William T. Gossett: Mr. Chief Justice, may it please the Court.

By designation of the State Bar and you know I am here to represent the respondent in the mandamus proceeding in the District Court of Michigan and Judge Keith of that Court.

Mr. Kinoy and I have made up a loose arrangement for dividing the argument here and that in addition to supplementing my argument on the main issue he will, I think, deal specially and specially with the matter of the Alderman decision.

We do not intend however to suggest or discourage any questions from the Court or from either of us on any point.

I want to come soon to the Government’s papers but not too soon because I am very clear on one thing the Government’s case has many infirmities, fundamental infirmities that go, that transcend the form of their papers.

There may have been controversy in this Court in the past about the scope and about the wisdom of the recognized exceptions to the warrant requirement but prior to this case, there has never been a serious challenge to the basic rule that ordinarily searches and seizures must be made pursuant to duly issued warrants and if they’re not, they are unreasonable.

Indeed, the Government for 40 years has admitted repeatedly that the fruits of electronic surveillance, the fruits of unauthorized searchers and seizures are not admissible in evidence to all during this period to which Mr. Justice Marshall referred when the Department of Justice was operating under presidential authority.

The Government admitted, during all that period, that the fruits of their searches were not admissible in evidence.

Justice Potter Stewart: Of course, during a great deal of that period Mr. Gossett, that was the regime of Amsted and of Goldman, was it not?

Mr. William T. Gossett: Yes sir.

Justice Potter Stewart: So that the problem was not a Fourth Amendment problem during the line of share -- that period or great deal of that period and in effect to -- what was involved was a provision of the Federal Communications Act.

Mr. William T. Gossett: Yes.

Justice Potter Stewart: Not the Fourth Amendment, am I wrong about that.

Mr. William T. Gossett: Which -- you’re quite right Mr. Justice Stewart and the -- under the interpretation of that Act by the Attorney General, the proscription was against disclosure and all the Attorney Generals admitted that the disclosure point that they could not disclose and if they disclosed the fruits, there was a violation of the Act.

But during of all of that period the Attorney General sponsored many Bills in Congress to secure the right to wiretap and all of those Bills where either defeated or withdrawn because Congress was concern about the definition of more power about national security and that they were afraid abuses and so, not until 1968 was legislation adopted that overrode the 1934 Act.

Obviously, this case -- in this case the Government does not claim that the electronic searcher falls within the -- in any of the recognized exemptions.

It seeks instead that it did in Katz.

A new exemption indeed, it seeks for all searches that the Attorney General may have characterized or may label national security, an exemption from any meaningful judicial supervision either before or after the search.

Thus, the Government in effect presents a startling proposition.

It is that also called national security searches and seizures are non-justiciable.

They simply are beyond the reach, beyond the competence of the Courts.

They are for the Attorney General, the Executive alone.

The wiretap here involved was ordered because and only because the Attorney General unilaterally determined that it was reasonable to gather domestic intelligence information deemed necessary as he put it, now I want be of clear about his language, to protect the nation from attempts of the domestic organizations to attack and submerge the existing structure of the Government.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: What use, Mr. Gossett, is the Government now undertaking to make of theses disclosures, if any?

Rebuttal of William T. Gossett

Mr. William T. Gossett: The Government claims in this case that the -- and claims that in all cases of national security Mr. Chief Justice, that the fruits of wiretaps secured in connection with so-called intelligence information gathering should be admissible of evidence in a criminal case, that’s our position.

And they -- they are -- they've set up here a conflict between the physical security of this country and the right of these defendants to privacy.

That's not the decision that the District Court made.

That’s not the decision that the Court of the Appeals made.

And that’s not the decision before this Court.

That’s not the question before this Court.

Their question before this Court is whether the Fourth Amendment is going to be protected, whether the protections of the Fourth Amendment are going to be respected, whether people are going to be protected against arbitrary power of Government.

That’s a decision that the Court of Appeals made.

And that’s a decision that we hope this Court would make.

In preparing his affidavit in this case, the Attorney General did not even comply with the statutory standard on which he himself relies.

Established by Congress in 1968, it says specifically not only in there main brief but then they have five briefs that is the standard.

Now, let me direct -- let me invite the Court’s attention if I may to the record here.

There’s some confusion, I don’t know how to define it.

I don’t know how the Court can be other than confused about the record in the case here.

May I direct your attention to -- I invite your attention to the page 3 of the main Government brief first.

This is what the Attorney General’s affidavit said about documents that after they say that the wiretap is applied to purpose I‘ve stated and then paragraph 4, submitted with this affidavit is a sealed exhibit containing one, the records of intercepted conversations; two, a description and let me explain that the lower court, let me be sure that you understand that lower court direction here is only that the Plamondon conversation be disclosed, nothing else, just a Plamondon which the Government says was fortuitous, he dialed the wrong a number, two, a description of the premises that were the subject of the surveillances; and three, copies of the memorandum reflecting the Attorney General’s expressed approval of the installation of the surveillances.

Now, next up let me suggest that we go page 9 of the Government’s reply brief.

They broaden the scope there a bit, they say, “Respondent District Judge urges that it complains about the standard employed here and that we can make the point that they haven’t complied with the standard” which we certainly do.

Now, I’ll come back to that, the affidavit however, says the Government was not authorization to the surveillance in response to defendant’s motion under Rule 16, affidavit was prepared and transmitted to the Court together with the in camera submission.

This submission contains: (1) The signed authorization of the Attorney General.

(2) Documents characterizing the illegal activities and names of the authorization in question including information relating to the means by which it intended to achieve its aims.

(3) A summary inventory of prior monitored conversations.

(4) A document relating to the previous authorization of the prior Attorney General.

(5) A description of the in premises involved in all overhearings of the defendant respondent Plamondon.

Those documents and not the affidavit are the proper basis for determining the ground of upon which the Attorney General acted.

Third, let us go to page 30 of the Government’s main brief if we -- if I may.

There's a footnote there after footnote 13 on page 30, defendant Plamondon was not the subject and so forth.

The next paragraph, we obliged with the clerk of this Court for it’s in camera consideration the same exhibit we submitted to the Court of Appeals for the Ninth Circuit in the Ferguson case.

This was aaddressed to this Court which involves the same issue as the present case and is now pending in the petition through for a writ of certiorari.

Now, that sentence ought to be read as carefully as it was written.

It does not say that the material in the exhibit was in the record of the Ninth Circuit case.

The fact is that it is not in the record of the Ninth Circuit case.

It was submitted to the Ninth Circuit and the Ninth Circuit we understand we are lively informed by former Deputy Attorney General who represented Judge Ferguson out there that that material was submitted by the Government.

They where requested to make a motion.

They made a motion.

The motion has not been decided.

So that material to which the Government -- on which the Government says that is relies for the authority, the Attorney General for the considerations that motivated the Attorney General.

Not in the record of this case.

Was not in the record of the Sixth Circuit and not in the record of the Ninth Circuit.

So how does it become material?

It's not available to us and let me point out that on page 8 of the reply brief of the Government.

They make some vague statements.

They have always taken the position.

They took the position in the -- in their affidavit, in their memorandum of law in opposition to the motion to suppress to the lower court.

They took the position in the Court of Appeals.

And they took the position in there petition for writ of certiorari in this case that the issue here was one of domestic security, domestic surveillance, domestic organizations.

Now, they say and this is as far as they go and this is as much as they say on page 8, the fact that an organization is domestic does not mean that its activities cannot involve foreign intelligence operations.

A domestic organization for example, may have a large number of significant foreign contacts in association that may influence, may have a large number, and may influence or they even call these domestic activities.

Similarly, individuals connect with the domestic organization themselves may have such foreign ties and then they go on to say, it’s a practical impossibility to find the distinctions such as organization unless one uses the principle of geographic size and so on.

The District Court did not consider this problem but granted decision on the fact that the organization is distinguished from the intelligence sought was wholly domestic.

The point is that, the argument was not made before the District Court.

It was not made in the Court of Appeals.

It is not made in the writ of certiorari to this case that -- and there -- and that there is no assertion now in any document, not even in this reply brief that this organization, this “domestic organization” it has foreign ties or is influenced by foreigners.

There's no such statement and so, I do not know how this Court can base its decision in this case on adequacy to papers on any such record.

Now if I may, I want to read the rest of the affidavit, the rest of the footnote on page 30 and 31 starting at the bottom at the bottom of page 30. We think these records demonstrates that any characterization of the organization in question is domestic, is in the Court of --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: I have not found you yet Mr. Gossett.

Rebuttal of William T. Gossett

Mr. William T. Gossett: The -- it’s the main brief of the Government, page 30 and the footnote, last paragraph of the footnote beginning on page 30, Mr. Chief Justice.

We think these records demonstrate at any characterization of the organization in question is domestic is unsupportable.

For example, over a 14 month-period, 521 telephone calls were made from this installation, the foreign and overseas installations and another 430 calls, the contents of which deal with foreign subject matter replaced to domestic installations.

Now, that’s a sole basis for the Government’s claim for that -- there’s any foreign intelligence involves here.

And I -- who characterized that, it says any characterization of the organization as domestic.

Who characterized this as domestic?

Why, it's perfectly clear the Attorney General of the United States characterizes it as domestic and he is never in any paper stated otherwise, stated facts that are available to us as a basis for any other characterization.

How would you characterize a trade mission of a foreign country that was being used as a source of intelligence governing in this country?

Rebuttal of William T. Gossett

Mr. William T. Gossett: Well, I think that it would then depend on the facts and circumstances and I think that’s the very purpose of the warrant requirement to set up those facts and circumstances, have counsel explain to the Court what the significance with other relations as where and have the Court perform its constitutional role to determine whether the -- an intrusion is proper, what to do extent of the intrusion and so on, all the requirements whether they're probable cause for the intrusion.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Well, that would mean probably if they were going to have surveillance of an embassy they would have to do the same thing in their view, is that correct?

Rebuttal of William T. Gossett

Mr. William T. Gossett: This Court has reserved expressly the matter of the power of the President in the foreign field.

We don’t have it involved here.

I think the President perhaps has extraordinary powers in the foreign field but even there, let me make a point if I may.

If I could ask you to turn to our brief, page -- in the appendix of our briefs.

We set out there Section 2511 (3) whereas consists in the appendix of the blue covered brief, we submit.

Its from the Omnibus Crime and Safe Streets Act of 1968, 2511 this language was obviously very carefully drawn and it appears in a statute that is very carefully drawn that for the first time in the history of this country abides for electronic surveillance with the Court Order and provides that in case of national security searchers and seizures, that the Government may proceed without a court order provided that within 48 hours after the surveillance starts they get a court order or apply for court order.

That’s the expressed provision of Congress with respect to National Security cases.

Now 2511 (3) nothing contain in this chapter or in Section 605, the Communications Act of 1934.

Now, we deal first I think with the foreign power, shall limit the constitutional power of the President to take such measures as he deemed necessary to protect the nation against actual or potential attack or other hostile acts of a foreign power to obtain foreign intelligence information deemed essential to the security of the United States or to protect national security information against foreign intelligence activities.

Three times that use foreign, the word foreign, foreign power, foreign intelligence information.

Now, the next sentence I think deals with the domestic side, nor shall anything contain in this chapter be deemed to limit the constitutional power of the President, to take such measures as he deems necessary same language, to protect the United States against the overthrow of the Government by force or other unlawful means or against any other clear and present danger to the structure or the existence of the Government.

Now, why I didn’t we -- quite aside from the facts that are not available to us?

Why could not the Government of the United States follow the prescribed languages with respect to domestic activities?

The word “intelligence” is not used but the word “force” and the words “unlawful action” and “clear and present danger.”

None of those words are used, have been used not only in the affidavit have been use any document in this case.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Mr. Gossett, suppose a foreign power, hostile foreign power or unfriendly foreign power engages, hires, employs people who lived here whether citizens or not and they engaged in this type of activity.

How would you think that they would be or how would you characterized them, as part of the foreign or part of the domestic operations?

Rebuttal of William T. Gossett

Mr. William T. Gossett: I think if they were employed by the foreigners, they might be part of a foreign operation.

But let me --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Then they’d fall under the first part of the statute?

Rebuttal of William T. Gossett

Mr. William T. Gossett: I think so.

I think so and the -- wherein the doctrine, Mr. Chief Justice about the facts, all we know is that the fact -- that the Attorney General said and said to the District Court and the Court of Appeals, this is a domestic organization, nothing about foreign activities and the most I have said is that foreign activities may be involved.

That in the domestic organization not this one but in domestic organization, foreign activities may be involved.

May I just read, I call your attention to the last sentence and that’s very carefully drawn paragraph.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: You’re still on 28?

Rebuttal of William T. Gossett

Mr. William T. Gossett: I'm still on the Appendix.

Yes, on 2511 (3).

The contents of any wire or oral communication intercepted by authority of the President, this was read by Mr. Mardian, right.

I read it differently than he does.

I see significance in it that he did not point out.

In the exercise the foregoing powers may be received in evidence in any trial hearing or other proceedings only where such interception was reasonable.

Now, and shall not be otherwise be use to disclose except if it is necessary to implement that power.

What does reasonable mean?

Well, the committee reports are quite clear on this subject.

They interpret reasonable just as this Court interpreted in Camara and in Katz and in Berger.

They say reasonable the test reasonable is a standard reasonableness shall be the probable cause test under the Fourth Amendment.

They make it very clear.

So when they use this -- the Congress used this language they meant that in a domestic situation if the Government expected to use the evidence -- the fruits of the electronic surveillance in evidence then they must -- it must be reasonably obtained and that means under the Fourth Amendment probable cause test.

They say, the Government says the Fourth Amendment does not prohibit all searches and seizures without warrant but only unreasonable ones.

The test for determining reasonable as they say is to weigh the competing interest involved and they then purport the balance of competing interest.

And they say, they find naturally, that the Government interest in protecting national security, the physical security of this country had ways the invasion of personal rights result -- resulting from the surveillance.

Of course, it ignores the essential second step in the procedure and as I say there is unfair weighing if they are weighing the national security against the rights of these three defendants.

But determination of whether search is unreasonable involved more than a weighing of the competing interest, the process must begin with to quote this Court in Camara, I never known that correct pronunciation, I hope it’s Camara.

One governing principles justified by history by current experience that is consistently been followed that except and certainly carefully defined classes of cases of search of private property without proper consent is unreasonable unless it had been authorized by a valid search warrant.

The warrant procurement is not merely one method of assuring reasonable search, it is crucial and it is generally indispensable.

Probable cause set in the Court in Camara is the standard by which the constitutional mandate a reasonable as it is tested and the burden, the burden is on those seeking an exemption from warrant requirement the show a need for it.

Not just a need to search but the need the search without a warrant.

Now, of course there’s a Governmental interests who would dispute.

There's a Governmental interests in protecting the fabric of society so as the Government puts in his brief.

But that’s not the interests as take in this case.

In Camara, as you recall and that almost identical argument was made in principle, “That the general health and safety of the entire urban population is dependent upon enforcement of minimum fire housing and sanitation standard.”

Then, thus it was claim at required systematized inspection of all physical structures about a warrant.

But as this Court noted the argument missed the mark.

The question knows not whether these inspections may be made but whether they may be made without a warrant and so it is in this case.

But the warrant procurement is no mere formality.

We agree with the Attorney General that the President is responsible for ensuring our system of Government as a viable entity.

Indeed his duty is even greater than that, greater and more formidable.

He sworn not to protect the Government as such but to preserve, protect, and defend the Constitution of the United States but his powers must be exercise and the need for information satisfied to a constitutionally proper means.

And the constitution limits the President even in his most awesome responsibilities that this Court has held in a number of cases and that we don’t subscribe to the inherent power of argument, the Government made it in the lower court and in the Court of Appeals that would do formatting its main brief in this case and now it seems to back to the inherent power of argument.

We think --

Unknown Speaker: How about the -- what if Congress made it clearly express the statutes said that the electronic surveillances shall be carried out only with a warrant but the warrant may either be obtained from the magistrate or from the President of United States and then this had been the particular case, the President issues what is called a warrant to presume the statute.

I think that what the Government -- what the generations of Americans were talking about formulated the Fourth Amendment was a neutral magistrate, a detached magistrate and the President is a political man and I don’t think, and so is the Department of Justice, (Inaudible) work for him.

They're politicians and they should not be given the power to determine how much and how long and how great will be the intrusion of private citizens in this country.

And that’s what the Government is arguing for in this case.

Unknown Speaker: You would say that would be unreasonable.

It’s unreasonable to trust part of the United States as much as you trust the District Judge?

Unknown Speaker: And a warrant -- a warrant within the constitutional meaning of that phrase is a matter of definition means that one issued by a neutral and detached magistrate.

Mr. William T. Gossett: This is Court has so held.

Unknown Speaker: Not by either one of the parties.

Mr. William T. Gossett: Yes, sir.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: I take it when speak of the political branches, grants you would include the Congress in as a political branch as well as the executive?

Rebuttal of William T. Gossett

Mr. William T. Gossett: I would indeed accept that I think Congress has a power to set up standards from which the --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: But would you view, I take it to a degree or that would be your view that Congress could not issue a warrant?

Rebuttal of William T. Gossett

Mr. William T. Gossett: Could not pass upon the standards that’s asked upon the facts, I agree.

Yes, sir --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: They define the standards but they couldn’t issue the warrant?

Rebuttal of William T. Gossett

Mr. William T. Gossett: Yes.

That’s our position and of course they have set up standards in the 1968 Act and I think that Act has gone a long way to solve some of the problems here.

And the Act deals with such crimes as espionage, sabotage, Presidential assassination, treason, all of these things that the Government says are unsafe for the courts to deal with.

They're too complicated.

They can’t deal with these matters but they must be dealt with the by executive and is -- in his great -- with his great wisdom and knowledge and background on this matter.

They must be dealt with by the executive.(Voice Overlap)

Well are you -- are you arguing Mr. Gossett that’s whatever the scope of inherent power prior to the 1968 Act.

If the 1968 Act has now spoken to this subject and controls, is that your argument?

Mr. William T. Gossett: So far as Congress is concern, it does, it has.

I think Congress has left open a couple of questions that with deference to the decisions of this Court and the position of this Court in certain cases.

But so far as securing wiretaps, wiretapping and intruding into the lives of private citizens in this country.

I think, Congress has spoken and it has stated the policy very precisely and elaborately.

The language was -- is very carefully drawn.

Thank you, Mr. Chief Justice.

Unknown Speaker: Did the -- before you sit down Mr. Gossett, is there -- did the District Judge look at this in Camara submission?

Mr. William T. Gossett: He did and I'm glad you answered that because he found expressly precisely that having looked at it that he could not make a determination as to the significance of it from a prosecutorial benefit point of view.

He could not make a determination.

Unknown Speaker: Is that on the record?

Mr. William T. Gossett: It’s in the record, it's a -- I'm sorry I don’t I have the page before me but the official citation is 444 F. 2d at page 668.

Unknown Speaker: And did the Court of Appeals look at it?

Mr. William T. Gossett: In Court of Appeals, yes.

630.

Pardon?

Unknown Speaker: Both the District Court and the Court of Appeals look at the --

Mr. William T. Gossett: No, the District Court made so much no such finding.

The Court of Appeals did.

Unknown Speaker: Yes, I see.

Mr. William T. Gossett: And that we don’t really know what was before the Court of Appeals.

We have one listed of documents as I pointed out.

Yes, I'll (Inaudible).

Thank you, Mr. Chief Justice.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Mr. Kinoy.

Argument of Arthur Kinoy

Mr. Arthur Kinoy: Mr. Chief Justice and members of the Court.

I rise before this Court to represent the three individual respondents John Sinclair, Lawrence Plamondon, and John Forest.

But as the Court of Appeals has stated so powerfully in the opinion before this Court, the thrust of this case now goes far beyond the rights and liberties of these three young men.

The Government has seen that to use this case as a vehicle for propelling a claim of executive power.

So ominous in its importation and sweeping in its dimension that is as transform this appeal into a case which as this Court has said touches the bedrock of our political system.

Mr. Mardian has seen fit this morning to call upon the authority of the Great Chief Justice in Mulberry.

I would suggest to the Court that in the words of that Chief Justice this case had become on of those rare cases of peculiar delicacy which call for the historic role of this Court as the ultimate interpreter of the Constitution.

Now, the considerations I suggest to the Court, awesome and foreboding which permeate the opinions of the District Court and the Court of Appeals arise out of an openly expressed and prime attempt by the executive to use this case to obtain the imprimatur of this Court for a program of domestic and I stressed that word, domestic espionage and surveillance of political opponents on Presidents in our history.

Mr. Gossett has exposed fully, I believe the essence of the executive’s claim of executive power to engage in wholesale wiretapping of American citizens without regard for the Fourth Amendment commands of prior judicial approval by a neutral magistrate.

The very point of the First Amendment -- of the Fourth Amendment which this Court has thought so recently in Coolidge, in Camara without a showing of probable cause or the necessity of particularity whenever in his sole and unchallenged judgment the ideas, associations or political activities of these citizens may constitute an attempt and here I used his words to subvert the existing structure of the Government.

Now, as Mr. Gossett has pointed out and in the words of Judge Edwards in the Court of Appeals for the Sixth Circuit, this would -- to place it bluntly, erase the Fourth Amendment from the domestic light of this country.

The Amendment which this Court has thought is the embodiment of fundamental principles of liberty.

But I would like to suggest to the Court that the most serious consequences which would flow from this Court’s placing its imprimatur upon this claim of power would be the stifling of the political freedoms guaranteed by the First Amendment, the continued vitality of which rests.

It’s been great deal of discussion today about the security of the Republic and the security of this Government.

Well, Mr. Mardian did not include in his discussion to the Court, the deepest teachings of this Court that the security of the Republic basically depends upon preserving the essence of this system of political freedom, those great words of the Chief Justice.

Justice Hughes in De Jonge, preserving the essence of the political freedoms of the country.

Now the fear or the excessive and uncontrolled executive power which permeates the Court of Appeals’ opinion and the opinion of the Respondent District Judge, the fear of this power, to sweep aside Fourth Amendment protection against what?

Against warrantless general searches and seizures.

I suggest to the Court that not since the days in 1761 when the Board of Massachusetts Court, James Otis pleaded a case as a more classic general search ever come before this Court.

Here you have a search of 14 months duration by the Government words, 14 months duration over 900 telephone calls involving, Lord knows how many thousands of people who as Mr. Gossett said by mistake dialed a number.

Now, this fear which is reflected in the Court of Appeals opinion of this unprecedented in his power is based not only on the contemporary European lessons of tear news this country is not supposed to be reflect but is based I suggest on the most important of our own experiences as a people.

That the central teaching of our own history has been that arbitrary general searches and seizures always, not always and that is the teaching and the meaning of the essence of our experience of the people is the pact to the assertion of theoretical control over the lives of people and this I suggest to the Court, is the brilliant heart of the Court of Appeals’ opinion which is here for review by this Court.

The concepts of the Court of Appeals that beyond doubt, the First Amendment is the cornerstone of American Freedom and the Fourth Amendment stands as the guardian of the First and this reflects the teaching of this Court in Marcus, that the Bill of Rights itself, the Fourth Amendment was fashioned against the background of knowledge that unrestricted power of search and seizure was an instrument for stifling liberty of expression.

Now the power which the Attorney General seeks here, would legitimatized a widespread dragnet of a secret surveillance of domestic political opposition of which the present record Appendix A to our brief for example is but a tiny preview already the subjects of the Attorney General’s suspicion and I used that word advisably for on leaders of the Anti-war Movement, Black Militant, Catholic Activists, pacifists, Advocates of Youth Culture but what is the deep danger to the country that this claim represent.

As formulated here this morning and in the brief submitted to this Court, that claim of power can include anyone who speaks out.

Now, I put it bluntly to the Court that this is not an exaggeration.

I put to the Court the example of the reason suggestion from high quarters in the executive department that critics of the proposals made by the President of the United States in respect to the Vietnam War and I used their own words, are consciously aiding and abetting the enemy of the United States.

That was the Chief of Staff of the White House two weeks ago.

Now, I suggest to the Court would these critics be included within the scope of this domestic surveillance.

They’re aiding and abetting the enemy of the United States during there phones can be tapped.

Now, I would say to the Court that the question asked by this Court in Baggett-Bullitt, where does principle possibility end and intended coverage begins goes to the heart of this issue.

Goes to the heart of this issue unless this program now loudly proclaimed by the executive of uncontrolled executive warrantless open ended wiretapping of domestic political opponents unless this is decisively repudiated.

Not sidestepped and I urge deeply decisively repudiated by this Court, the inevitable effect will be not to -- and here I pause for a moment, I will not use the word which I heard the Solicitor two days ago before this Court say, “Was overworked in this Court.”

I will not say that the inevitable effect will be to chill the exercise of democratic right.

I would say the inevitable effect will be to choke and stifle.

The exercise of First Amendment rights by millions of American citizen, millions of American citizens and I call to the Court’s attention the poignant and incisive discussion of Judge Kiley of the Court of Appeals in the Seventh Circuit in his fascinating article, Private in Black Standard, which he warned us all.

Speaking of this pattern and danger of surveillance, that it seems enough to contemplate this specter of a big brother observing how we think, we feel and act and the oppressive, moral and political climate they were tend to suffocate our freedom.

Now, to me the most disturbing aspect of this case is the frank willingness of the executive to engage in such a program and in its eagerness to sustain such a program, the executive attempt to evade the prohibitions of the Fourth Amendment.

The question Justice Marshall asked from the bench to Mr. Mardian by saying as -- Mr. Mardian said here this morning that this program of domestic political espionage is unrelated to any criminal investigated activity but is merely unintelligence gathering operation.

But what Mr. Mardian does not discuss is that attempt to evade the protections of the Fourth Amendment was repudiated by this Court directly squarely and head on in Camara.

When the opinion of the Court, Justice White’s opinion of the Court, met head on the argument there made by the state authorities that we're not involved in this Fourth Amendment problem because our intention is not to look for criminal violations, we're looking for other things.

Go to the health and safety of the community and this Court said that that misses the whole point and what did it do in the fascinating way.

The majority opinion according to Camara adopted approvingly the dissenting opinion of Justice Brennan in Abel, Abel against United States in which the justice pointed out and reflected in the Camara opinion.

That this misses the whole point of the Fourth Amendment that the right protected by the Fourth Amendment is not the right to be secure from having evidence of criminal activity taken from you unreasonably.

That’s not the right to protect it.

The right to protect it is to use again the words of these Court again and again.

The sacred inalienable -- the right that used in Boyd, the words in Boyd, the words of Justice Brandies in Olmstead, the absolute right to privacy.

That the issue is not, why that right is being violated?

The Fourth Amendment stands to protect the citizens of this country from arbitrary invasion of there right.

It stuns me a little bit to hear the arguments made by a Representative of today’s executive which were made by the Representatives of George the III in Entick against Carrington, the precise argument.

This Court is told as was the British Court in Entick that courts cannot look at the reasons for the searches.

That resides in the special knowledge of the crown.

The British Court was told in Entick, you must sanction this general search for -- and neither words from Entick for reasons of state, for reasons of necessity.

No, we cannot tell you all the facts of those because they reside in the head of our Chief Executive Officer known as the Secretary of the State.

Those were precisely the arguments raised in Entick.

Those were the arguments, the Fourth Amendment was designed to eliminate.

Mr. Mardian’s argument is not with us.

Mr. Mardian’s argument is with those who wrote the Fourth Amendment.

Mr. Mardian’s argument and the Government’s brief reads as if saying that, “Oh, it is perfectly alright.

We can do all these things because we are conducting investigative intelligence gathering as if the executive has limitless uncontrolled powers in the area of political association belief and activities.”

All of which as this Court towards in Stanford, all of which are affected by the general searches conducted here, as if the general searches because the Government there -- the general executive, I think it is important for us to be precise in our language here.

I prefer not to use the term, "The Government" here, the issue was too profound and too serious.

The executive says that if these general searches are conducted unrelated to the purposes of immediate criminal prosecution then we can do whatever we like.

In the vast area of political association believes in activity we can have whatever wiretapping we want to have there.

It doesn’t matter what effect it has on people’s willingness to engage in political activity, on people’s willingness to engage in political association.

I suggest that this Court has thought and only recently as reaffirmed the profound words which this Court now has written into fundamental law of Justice Brandies concurring in Whitney against California, only recently in Brandenburg with this Court write those words into the fabric of our law, that Government action which impinges on the delicate and vulnerable freedom.

The words of -- but is tolerated if at all only when required to prevent the most eminent immediate serious role attraction of a clear and present danger of a substantive evil of a serious nature within the power of the Government.

But the argument of the executive here is a total rejection of Justice Brandies’ philosophy and the philosophy, I suggest of this Court and the philosophy of the Constitution of the United States which Mr. Mardian has told us the President is one to uphold.

Because the executive now demands the power for general searches in the area of domestic political activity in the absence of any showing of probable cause for criminal prosecution on the uncheck say so of one man and we were told this morning that the absolute sacred privacy right to the American citizens are best protected in the hands of a one man.

Now, those who wrote the Fourth Amendment did not agree with that.

And that -- this Court said in Coolidge just last term.

Those fundamental values are sometimes question these days.

This Court said, sometimes people feel that these values, they don’t work.

And the Court pointed out that use the words, feel of internal subversion.

Sometimes makes us shake about these values but that’s what this Court seeks here for is to protect those fundamental values.

Those judgments were made when the Fourth Amendment was written.

Now, I suggest to the Court that no program of Government activities which touches the area of the First Amendment Right has ever come before this Court for review which so totally ignores the most elementary teachings of the Court.

Compare it to the words sanctioned in governmental actions struck down in Baggett-Bullitt, struck down in Cramp, struck down in the issue.

This Court says that when Fourth Amendment problem touches the First Amendment, in the Stanford, precision and strict formulations are required.

This is -- has reflect precision, strict formulation.

Now, I can understand why the Government is so desperately trying in this Court to bury the Attorney General’s affidavit as the basis for there action upon the psychic’s pricing from a litigation point of view, from an elementary thinnest point of view that the first time the executive takes the position that the Attorney General’s affidavit is not what you look to define the basis for the search.

The first time they took that position is in the reply brief we got five days before this oral argument.

You look back to their main brief, go back to the original brief filed in the District Court that Judge Keith acted on.

Go back to the brief filed in the Court of Appeals to the Sixth Circuit and then what’s so interesting, recently we argued in the Seventh Circuit the identical issue with other representatives of the executive in United States against Dillinger and in the Seventh Circuit, the representatives of Department Justice got up and said, when question from the bench as to what's the basis for the searches.

They all look at the Attorney General’s affidavit Your Honor.

No!

In this Court now they’re running from that affidavit.

It's perfectly clear why they're running from the affidavit.

Cause the affidavit on its face reveals the fundamental violation of the First and Fourth Amendment.

But in one sense there is something deeply serious that is reflected by their running from the affidavit.

Now these five days prior to argument, the citizens are not even allowed to know the basis for the depravation of fundamental right.

What are we told?

No, you cannot look at the Attorney General’s affidavit any longer.

That’s not the reason for the right and what kind of limit in judicial review can there be if the citizens doesn’t even know.

Forget about the facts underlying the action.

It doesn’t even know what the basic for it, the claim of right to set aside Fourth Amendment right.

What are we told?

That basis is in secret document which in a magic way seem to enlarge as this case goes on -- the documents before Judge Keith.

Then all of a sudden there is supplemental envelops before the Court of Appeals.

Then all of a sudden there are new envelops filed before this Court and here they’re not so secret these envelops.

What’s in them?

Because whenever it suits the executive convenience they tell us and the Courts openly, publicly what are in them, but for the first time today, they were astounding to me.

For the first time today, we were told in this litigation that in these envelopes there is a memorandum from the head of the Federal Bureau of Investigation discussing prior wiretaps and prior surveillances.

We never heard that before?

Well, if that was so secret that it can now be discussed and openly before this Court, why weren’t we told a long time ago?

But what emerges is that if the bases for the deprivation of fundamental rights are in the secret documents which we don’t know and we can’t see, which we can’t even challenge, I suggest that we have a right.

Now in 1972, we’ve already run in 1984.

Nothing could be more (Inaudible).

Nothing could be more grotesque.

In the situation in which we don’t even know what the basis for the deprivation of fundamental rights.

What does this do?

It makes a mockery of any pretense of judicial review, supposedly a safeguard.

Now, I would suggest that if sanctioned by this Court, this warrantless general wiretapping of domestic and I stress that.

There is no question here of the so called foreign intelligence exception discussed in Katz, discussed in Giordano.

This was not supposed to be a test case from the Government’s point view from the executive’s point view of the so called foreign exception.

They allowed the -- from one into the country of the Attorney General’s big speeches in which he talked about this case, which he said they are testing the domestic, their right to have domestic surveillance of so called domestic subversion.

All of a sudden they discovered they run very shaky constitutional grounds.

So at the last moment, they tried to infect this case with an inference of foreign affair.

Why suggest to this Court that it is not so difficult to disentangle one from the other?

That this throughout the history of this country have been the sorts of the most serious eroding, the most serious eroding of constitutional liberties, at every turning point in the history of a nation where there’s been a challenged to fundamental constitutional liberties, it has always been in the name of foreign agent.

When the first attack on Jefferson and the Jeffersonion submerged, what was it?

They were French Agents.

And therefore Alien Position Act was alright.

First, you study the First Amendment.

Pull them in trial for sedition, why?

Because they were French Agents, foreign agents.

This Court is well aware of the same development around the promenades and the members of this Court was the author of that famouse document practically with the Department of Justice, Justice Frankfurter.

Pointing out, there once again end of World War I, the fear of foreign nation was the thing that intermingled into a cover to destroy, what?

Constitutional protections for American citizens, for American citizens, and this Court has lived through and proudly emerged from the period of time we all know as the period of the McCarthy period.

The period in which once again the fear, the fear, the cold fear of foreign, foreign elements was used.

Why?

To undermine the Fifth Amendment, the present Solicitor General of the United States wrote an important document on the erosion of the Fifth Amendment during that period of time.

I suggest we face that problem once again and this Court as it did at each turning point in our history must stand resolute now to reject this effort to introduce the specter of this fear which erodes the fundamental rights of all Americans, not just to three young men before this Court.

I think the serious need of what the executive is asking for is reflected in the constitution of theory which it now emerges full blown.

The theory that in the domestic area, there is an inherent power to do whatever the executive feels is necessary to be done.

I will not take time with this because this Court has over and over again rejected that concept only this last June in New York Times in a powerful opinion of the late Justice Black.

That doctrine which this Court at the end of the civil war called the most pernicious doctrine in ex parte Milligan, the most pernicious doctrine that the executive do with inherent powers can watch suspend constitutional guarantee.

That’s what they’re asking for here.

The power to suspend constitutional guarantee because they say.

No, this is not the system of Government which was created in this country.

The system of government which is created in this country is that system of limited powers.

Yes, it may not work as well as Justice Frankfurter pointed out in Youngstown, may not work as well as some other Government.

Can be more efficient, the oppressive button in another Government you have to worry about warrants, you don’t have to worry about courts, do what you want to do but that’s why this country was set up in the way it was and that’s why this Court sits.

Precisely, to protect this country and the citizens of this country from the erosion of the fundamental constitutional values which make us strong and safe.

I have exhausted my time.

I would like to say one word if I may just, one word on the last question which the executive has raised here in respect to the Alderman case, the Alderman opinion.

I was rather surprised to hear the representative of the executive say that what they are asking for in there brief is consistent with Alderman that I would not argue that.

It’s right in their brief.

They ask this Court to reconsider Alderman.

They ask this Court to overrule Alderman.

They ask this Court to throw out its decision of three years ago.

Well sort out, well reasoned and the thing that settles the inappropriateness of that request at this moment is the question the Chief Justice asked earlier and that is, that the Court of Appeals itself in looking at these lots and the Court will be aware of that at the end of he opinion said, it is impossible for us to say in looking at this very conversations that they might not have been prosecutorial benefit, and therefore it has to be adversary hearing.

So that I suggest that this Court should affirm the decision of the Sixth Circuit and in affirming the decision of the Sixth Circuit, this Court will be affirming the Fourth and the First Amendments of the Constitutions of the United States.

Thank you, Your Honor.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Thank you, Mr. Kinoy.

Mr. Mardian.

Rebuttal of Mardian

Mr. Mardian: Mr. Chief Justice and may it --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: If you need it, we will enlarge your time about two minutes.

Rebuttal of Mardian

Mr. Mardian: Pardon me.

If you need it, we’ll enlarge your time about two minutes.

Perhaps you won’t need it.

Mr. Mardian: I don’t think I’ll need it.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: You have 18 minutes.

Rebuttal of Mardian

Mr. Mardian: Yes, Sir.

I should first like to allude to the statement by Mr. Justice Stewart with reference to a constitutional definition of the warrant.

I am unaware of any constitutional definition of a warrant as such.

I think the constitution speaks of a warrant this government has recognized numerous types of warrants.

I think in footnote 13 of our brief, in our reply brief.

We indicate and this was not intended to be a comprehensive search, 20 instances where the Congress of the United States has provided for either warrantless searches or searches conducted under warrants issued by persons other than members of the Federal Judiciary.

Counsel have cited the case of Abel versus the United States.

In fact, we urged the Abel case in the Sixth Circuit Court and is interesting to note that the Sixth Circuit Court when referring to Abel stated that Mr. Abel was arrested by a warrant which the opinion of the Court found to have been lawfully issued by a lawfully authorized magistrate and that the material seized at the time of his arrest were held legally admissible as incident to that arrest.

A decision in that case was written by Justice Frankfurter.

The warrant was not issued by a magistrate.

The warrant was issued by an Officer in the Department of Immigration and Naturalization Service, a subordinate of the Attorney General of the United States.

I would suggest in this regard that while the warrant requirement as it pertains to judicial proceedings criminal judicial proceedings especially by enlarge are issued by members of the federal judiciary.

There is a great body in statute in this country which permits not only warrantless searches which we've alluded to in some of our briefs but warrants issued by persons other than judicial magistrates.

Unknown Speaker: Mr. Mardian, you -- I thought you referred us to footnote 13 of your reply brief and I can’t find it.

Mr. Mardian: Pardon me, it’s in the main brief (Inaudible).

Unknown Speaker: And it’s not in footnote 13 of your main brief that I see.

Perhaps I've missed something.

I do not want to -- I know your holding your time.

Mr. Mardian: I may have put those wrong, sir and I'm sorry if I have.

Unknown Speaker: I just can’t locate what you're trying to --

Mr. Mardian: But I could recite the 20 instances.

Unknown Speaker: No, don’t do that.

I would be interested in where in this brief afterwards, if you did submit it though.

Mr. Mardian: Yes, sir.

I'm sorry.

Unknown Speaker: That’s perfectly alright.

Justice Thurgood Marshall: Mr. Mardian, in all of these instances of other people issuing warrants.

Aren’t they all subject to judicial testing?

Mr. Mardian: I -- on the writ of habeas corpus which I believe was the --

Justice Thurgood Marshall: I didn’t say on any writ.

They're subject to judicial testing?

Mr. Mardian: Yes.

There is -- they are subject to --

Justice Thurgood Marshall: In your position, in the judicial testimonies and adversary proceeding with two parties, is that correct?

Mr. Mardian: The judicial review, I would say based upon the warrant requirement in each case.

Justice Thurgood Marshall: And isn’t there an adversary proceeding?

Mr. Mardian: Yes, sir.

Justice Thurgood Marshall: But here we don’t have an adversary proceeding.

Mr. Mardian: Well, in this regard I was interested in the statement by Mr. Gossett in which he says that he is in dark as to the contents of the in camera exhibit.

Mr. Gossett represents the respondent court and the respondent court certainly had in its possession and that in camera exhibit shouldn’t have been available if it wasn’t to the attorney for the respondent court as distinguished in the respondent -

Justice Thurgood Marshall: I understood that in camera made for the eyes of the judges nobody else.

Am I right or wrong?

Mr. Mardian: We have in the past and I think before this Court not too recently submitted to this Court in camera and to the attorneys for the parties in that case it was not a Federal District Judge but the defendants in the case itself.

Justice Thurgood Marshall: Well, did you at any time after this case sought.

Did you tell Judge Keith that he was -- could show it to them or not?

Mr. Mardian: No.

We never told him he couldn’t.

Justice Thurgood Marshall: Well, where could he infer you had the right to?

You told that this is for your inspection only.

Is that what he said?

Mr. Mardian: I would assume that at the time this matter came before this Circuit Court at least and before this Court, when Mr. Gossett became counsel of record had to --

Justice Thurgood Marshall: Well, let me ask you now.

Can Mr. Gossett see it now?

Mr. Mardian: Yes.

Justice Thurgood Marshall: Can we see him now?

Mr. Mardian: Yes, sir.

He may see it.

Yes, sir Mr. Justice he may see it now.

Justice Thurgood Marshall: So why are they here under seal?

Mr. Mardian: The contents I presume are known to or should be known to Justice, I mean, Judge Keith and we have no objection to Mr. Gossett’s viewing the in camera exhibits.

Mr. Mardian: Well, there only -- there's only one person involve contrary with counsel statement.

The only overhearing that we have is the overhearing of the defendant Plamondon.

The other two are here before this Court only because --

Justice Thurgood Marshall: The one whose name is Plamondon.

Mr. Mardian: Plamondon, yes sir.

Justice Thurgood Marshall: Can his lawyer see it?

Mr. Mardian: No.

The Government’s positions which initiated --

Unknown Speaker: Would have an adversary proceeding, wasn't it?

Mr. Mardian: Well, we would not having adversary proceeding in any instance where the overhearing involved matters relating to the national security.

If there is a distinction between overhearings in so called foreign intelligence cases as distinguished from national security cases, I have been unable as objectively as I can to do distinguish between so called domestic and foreign intelligence.

Now, counsel brought up the fact that in one of our footnotes we referred to some documents which we submitted to the Ninth Circuit Court of Appeal on our motion to augment the record.

That case came up -- was tried before the Keith case.

That -- that’s the Ferguson or Smith case.

In Mr. -- Judge Keith’s opinion, he refers in extensile to the opinion of Just -- Judge Ferguson.

In the way matter arose was this, in the Smith case which is still pending before this Court, I understand.

We made an in camera submission to the Court and I believe that in camera submission consisted a one sheet of paper which again was an incidental overhearing of the defendant Smith.

We urge in that case that it was national security intelligence tap and I think the record will disclose that it's the same tapped that is before this Court.

In that case, we urge that the information contained in the log should not be disclosed and its disclosure would not be in the interest and would be prejudicial to the national security.

We did not argue in that case nor was the question raised by the Court or by the defendant that that case involved a domestic intelligence case.

Yet, in the determination of the Court in the Ninth Circuit case, Judge Ferguson, he held that the Government was required to disclose again as a prelude to attain hearing.

The overhearing on the grounds that and he used the term 13 separate times, purely domestic or wholly domestic organization or purely domestic or wholly domestic intelligence.

And yet the only basis for the fact determination was the in camera submission of one sheet of paper which indicated the overhearing of the defendant’s Smith’s voice.

For that reason when the matter went before the Ninth Circuit, the Government sought to augment the record and to let the Court view all of the overhearings of the surveillance in question to determine whether it was in fact wholly domestic or purely domestic or whether it was a wholly domestic or purely domestic organization.

An examination of the logs will disclose that it’s not wholly domestic or purely domestic.

Its foreign ties exceeded its domestic ties and it was for that reason that we made that offer to the Court in the Ninth Circuit.

And we would make that offer to this Court, if the Court would like to view the record which we submitted in that case.

Now, with reference to why we footnoted the reference to the Smith case, that footnote, that brief was drawn at the time that Judge Ferguson sought a petition in this Court for certiorari before the determination in the Ninth Circuit and we acquiesce in that petition and sought to have this Court, hear both cases together so that this Court could view the in camera submission which was made at the Circuit Court level stage.

I take and I must take some exception to the characterization of this case as an attempt on the part of the Government to engage in electronics surveillance for the purpose of observing the activities of decedent political groups.

The statute under which this Government is operating certainly prohibits that.

I would also point out that this whole question of electronic surveillance in what is disclosed.

This Court must is a coordinate branch of Government rely almost entirely on the integrity of the executive branch.

The executive branch, it was the executive branch through the then Solicitor General who now sits on this Court, who made the disclosure to this Court.

And in each instance, where a motion is made under Rule 16, it is the integrity of the Government that has to be relied upon unless this Court is going to fashion a rule which would permit every defendant to rummage all of the files of all the investigative agencies of Government.

Now administratively, we suggest this cannot work.

Administratively, it would break down the separation of powers that exist between Government and would also break down the entire law enforcement function of Government.

Where do we go less than that?

When the motion is made, the Government responds.

If the Government is not to be trusted to respond with respect to a motion under Rule 16, then it should be expected.

I assume from what counsel said to respond honestly with respect to the nature of its activities.

Now certainly, this neither President or any prior President to my knowledge is authorized electronic surveillance to monitor the activities of an opposite political group.

The only purpose is -- as I have stated; one, to obtain the on going intelligence necessary to compete in the area of foreign affairs and the on-going intelligence necessary for this nation to protect itself against not only as foreign foes but its domestic foes.

Now, Counsel Gossett has suggested that we might in this area you use the provisions relating to cases involving sabotage or espionage.

I would submit that if it were a sabotage case or an espionage case, we certainly should invoke the provisions of the statute.

But when we’re talking about the on going intelligence function of Government, there is no probable cause in many cases as that term is used in the criminal prosecuted sense.

Now, I do not know that it’s an appropriate analogy but certainly the protection of the President of the United States against assassination is one aspect to the nation’s national security.

Heads of State have been assassinated to bring down Governments.

A simply -- simple cursory examination of the Warren Commission report will find, will disclose numerous instances by the Federal Bureau of Investigation and the Secret Service were criticized for not having the on going intelligence necessary to provide adequate protection to the President.

I suggest again with respect to the provisions of Article 4, Section 4 of the Constitution which the Congress has -- execution of which the Congress is placed in the President.

There is no distinction in the constitutional article or in the statutes passed pursuant thereto with respect to the presidential authority as its relates to invasion or civil insurrection.

Both require on going intelligence because without that intelligence, the President cannot make an appropriate decision.

As the Court held in the Kennedy case, constitution isn’t a suicide act.

The President can’t wait until the moment of invasion or insurrection to start putting together a counterintelligence function.

The President must have this information if he’s to carry out his responsibilities under the Constitution.

To defend this nation against invasion or domestic violence and we submit that the record of the past six Presidents and the past 12 Attorneys General is deserving of the high esteem of this Court, is deserving of permitting the Chief Executive to carry out his functions under the constitution and within the constraints of the Fourth Amendment as I have attempted to define them here.

Thank you, Mr. Chief Justice.

Justice Thurgood Marshall: Excuse me, Mr. Mardian.

Mr. Mardian: Your Honor.

Justice Thurgood Marshall: There is a question about Mr. Gossett, seeing this -- reading from page 21 of the record.

Accordingly the sealed exhibit referred to herein has been submitted solely for the Courts in camera inspection.

Does that change your mind?

Mr. Mardian: No, sir.

Justice Thurgood Marshall: Well, that’s Attorney General’s affidavit.

That was the Attorney General said.

I am giving it to you Judge Keith solely for you in camera inspection.

Mr. Mardian: This was before the petition for writ of mandamus was filed and before Judge Keith was represented by Mr. Gossett.

As we have in all cases to my knowledge and as we did before this Court in the times in the post case.

We permitted an examination not by a member in a case where a judge wasn’t involved but by not one but several four members or so.

Justice Thurgood Marshall: Do you think that a judge reading that would be free to turn it over to anybody else?

Mr. Mardian: I think if there is an -- if there is a misunderstanding in this case, it was not on the part of the Government, had the request been made most assuredly.

Justice Thurgood Marshall: I understood you to say you were showing Mr. Gossett had seen it?

Mr. Mardian: I had assumed that he had seen it.

I had assumed it.

Justice Thurgood Marshall: You still make that statement after this?

Mr. Mardian: No, sir.

If Mr. Gossett says he hasn’t seen it, he hasn’t seen it.

But had Mr. Gossett requested the opportunity to see the in camera exhibit, Mr. Gossett replication is such that who would be no question if the Government acquiesce on that demand.

Unknown Speaker: Mr. Mardian the record has been made here today to wholesale use of this type of surveillance indicating that it had been sharply on the increase.

Mr. Mardian: Yes, Mr. Justice.

Unknown Speaker: What are the actual facts with respect to whether or not it is currently and in recent years has been use more frequently than five years or ten years ago?

Mr. Mardian: I recently responded to a letter from Senator Kennedy of Massachusetts and I set forth the actual figures that the Department of Justice had with respect to electronics surveillance, the Director of the FBI, Mr. Hoover testifies annually during his budget hearings and will be testifying within the next week into as to the extent of electronic surveillance.

I can say without qualification rather than it is being increased that there has been a substantial decreased in the amount of electronic surveillance in the area in which we are speaking.

That is a matter within the knowledge of the Executive Branch of the Government and when requested we have disclosed on some occasions of the --

Justice William O. Douglas: I’ve been trying to get the figure -- I have read in a paper test here at this case.

A letter from Senator Kennedy to somebody, some other Senator and I am unable yet to get the figures that he quote, would you -- are you going to supply that?

Mr. Mardian: Yes, Mr. Justice.

Justice William O. Douglas: The problem is not on secrecy, the problem is one of that the Judiciary Committee hearings are not promptly printed and distributed.

Mr. Mardian: We consider this matter as did the Committee of the Privy Council of England as to how often you should distribute the figures.

Certainly, if the figures are disclosed on an on going basis of information relative to the intelligence function of Government can be gleaned.

But we did on that occasion in response to Senator Kennedy give him the figures that indicated the total number of surveillances for the entire year, the maximum number at each time.

You get into this numbers game Mr. Justice and you get -- you have problems because we, in our brief in the ninth -- in the Sixth Circuit and the Ninth Circuit as well, indicated the figures, the testimony of the Director of the FBI before Congress over the past ten years and those figures were as of the day he testify.

The figures I gave Senator Kennedy were the actual figures which we have in the Department of Justice and included not one a particular day which happened to coincide with Director Hoover’s testimony but the maximum number on any day and the total number for the entire year both as to telephones and microphones.

Justice William O. Douglas: Some of this information is set forth in footnote 10 of page 27 as I recall at your brief.

Mr. Mardian: Yes, sir, that -- those are the figures testified to by the Director and the only purpose was to show the decreased.

We were not intending to indicate anything other than the fact that they had decreased over the years.

I believe in one of -- I believe there has been references as Justice Douglas said to a letter from Senator Kennedy, the letter was to me, I believe, Senator and I responded.

Justice William O. Douglas: No, this was a letter to another Senator, I forgot who that Senator was, but I can probably get this on my own if you’re not willing to.

Mr. Mardian: I said I would supply them.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: I understand that you will supply a copy of that letter, we will probably do it.